Lane Hermann, Esq.

Joan Freiman Fink, Esq.

DECISION

Pursuant to G.L. c. 32 §16(4), the Petitioner, Joan Mello, is appealing the October 31, 2006 decision of the Respondent, Fall River Retirement Board, denying her request for accidental death benefits (Exhibit 1). The appeal was timely filed in accordance with the provisions of G.L. c. 32 §16(4).

A hearing pursuant to G.L. c. 7 §4H was held on November 28, 2007 at the offices of the Division of Administrative Law Appeals, 98 N. Washington Street, Boston, Ma. Various documents were entered into evidence at the hearing (Exhibits 1 -14). One cassette tape recording was made of the hearing.

FINDINGS OF FACT

Based on the evidence presented, I make the following findings of fact:

1. The Petitioner, Joan Mello, was married to and living with Antone Mello at the time of his death on July 19, 2005 (testimony of the Petitioner).

2. Antone Mello, d.o.b. 9/22/30, had been employed by the Fall River Fire Department since October 7, 1956 as a fire fighter (testimony of the Petitioner, Exhibit 6).

3. In October of 1989, the Petitioner and her husband attended a wedding in New Jersey. While at the wedding, Mr. Mello suffered a myocardial infarction. He never returned to work after that incident (testimony of the Petitioner).

4. On or about September of 1990, Mr. Mello filed an application for accidental disability retirement benefits based on the G.L. c. 32 §94, the so-called Heart Law (testimony of the Petitioner, Exhibit 5).

5. Mr. Mello was examined by a Regional Medical Panel on September 5, 1990. This Medical Panel responded in the affirmative to the questions of disability and permanence. The Panel also stated that there is "no evidence to offset the presumption that Mr. Mello's cardiac disease is job-related. Therefore, he falls under the heart law and accidental disability applies" (Exhibit 7).

6. Mr. Mello's application for accidental disability retirement benefits was approved by the Fall River Retirement Board under the Heart Law with an effective retirement date of November 2, 1990 (stipulation of the parties).

7. In early 1990, shortly after suffering the myocardial infarction, Mr. Mello was diagnosed with diabetes (testimony of the Petitioner).

8. In 2000, Mr. Mello was diagnosed with Parkinson's disease and in 2002, he was diagnosed with dementia (testimony of the Petitioner).

9. Mr. Mello died on July 19, 2005. The death certificate for Mr. Mello lists sepsis (48 hours) due to urinary tract infection (3 days) as the immediate cause of death (Exhibit 4).

10. On October 4, 2005, the Petitioner filed an application for accidental death benefits pursuant to G.L. c. 32 §9 (stipulation of the parties).

11. On August 11, 2005, Dr. Harvey Reback, Mr. Mello's treating physician, submitted a letter in support of the Petitioner's application. In this letter, Dr. Reback opined that Mr. Mello's "coronary artery disease complicated his urinary tract infection causing him to go into irreversible septic shock (with hypotension) and his poor cardiac status was contributory in the fact that his blood pressure could not be maintained and brought back to a normal level" (Exhibit 12).

12. On November 13, 2005, the Fall River Retirement Board sent the Public Employee Retirement Administration Commission (PERAC) a request for Appointment of a Regional Medical Panel to review the medical records of Antone Mello in connection with the Petitioner's application for accidental death benefits (Exhibit 6).

13. On December 15, 2005, the Fall River Retirement Board sent Dr. Madhusadan Thakur, a cardiologist, a copy of Mr. Mello's medical records including his prior Medical Panel certificate of 1990, his death certificate, notes from his treating physician, Dr. Reback, and from Dr. Reback's associate, Dr. Yufit, as well as the records from the Charlton Hospital at the time of Mr. Mello's death (Exhibit 7).

14. Following his review of the records, Dr. Thakur submitted a letter to PERAC dated December 26, 2005. In this letter, Dr. Thakur opined that Mr. Mello "died of sepsis from urinary tract infection in a patient who was on long-term urinary catheter and had a history of neurogenic bladder which might have been related to autonomic neuropathy due to diabetes. It is my professional opinion that the cause of his death is neither related nor as a result of the condition for which he retired in 1990" (Exhibit 8).

15. On June 12, 2006, the Fall River Retirement Board requested that PERAC send Dr. Thakur a supplemental letter from Dr. Reback as well as some additional medical records including the discharge summary from Charlton Hospital (Exhibit 9).

16. On July 6, 2006, PERAC sought clarification from Dr. Thakur requesting that he review the additional medical records including the letter from Dr. Reback (Exhibit 10).

17. On September 11, 2006, Dr. Thakur provided PERAC with an addendum to his original report in which he reaffirmed his original position that Mr. Mello "died of urosepsis from urinary tract infection" and that he found no causal relationship between Mr. Mello's death of urosepsis and the coronary artery disease which he suffered in 1990 and which led to his retirement under the Heart Law (Exhibit 11).

18. On October 31, 2006, the Fall River Retirement Board sent the Petitioner formal notification that her application for accidental death benefits had been denied (Exhibit 1).

19. On November 7, 2006, he Petitioner filed a timely appeal of this decision with the Contributory Retirement Appeal Board (Exhibit 2).

CONCLUSION

After reviewing the evidence in this case, I conclude that the Petitioner has failed to sustain her burden to prove that the death of her husband was the natural and proximate result of the injury or hazard on account of which he was retired as required by the provisions of G.L. c. 32 § 9 (1). See Cataldo v. ContributoryRetirement Appeal Board, 343 Mass. 312, 314 (1961). The Petitioner has the burden of proof on the issue of causation. Robinson v. CRAB, 20 Mass. App. Ct. 634, 482 N.E. 2d 514 (1985).

Mr. Mello was awarded accidental disability retirement benefits in November 1990 as a result of severe coronary artery disease and resultant myocardial infarction. There is nothing in any of the medical records submitted at the time of his retirement that makes any mention of urosepsis or urinary tract infection. Rather, his claim for accidental disability retirement in 1990 listed his cardiac condition as the sole cause of his permanent disability from employment.

On July 18, 2005, almost fifteen years after he retired, Mr. Mello was admitted to the hospital suffering from urosepsis and septic shock. He subsequently succumbed to complications from urosepsis the next day, July 19th, 2005. Although the Petitioner was diagnosed with diabetes, Parkinson's disease, and dementia in the intervening almost fifteen years after his retirement, there is nothing in the medical records submitted that indicate that he suffered from any form of urosepsis until the day before he died. In addition, Mr. Mello's death certificate makes no mention of coronary artery disease.

The only evidence of a causal relationship between Mr. Mello's cardiac condition and his development of urosepsis all those years later were the opinions of his treating physicians, Dr. Reback and his partner, Dr. Yufit, who treated Mr. Mello during his final hospitalization. In his letter of August 11, 2005, Dr. Reback opined that Mr. Mello's "coronary artery disease complicated his urinary tract infection causing him to go into irreversible septic shock…" (Exhibit 12).

Dr. Thakur, the cardiac specialist, who reviewed all of Mr. Mello's medical records including the records from his treating physician, Dr. Reback, as well as the records from his final hospitalization in 2005, opined that his death was the result of sepsis from urinary tract infection rather than related to or the result of the cardiac condition for which he was retired in 1990. The Fall River Retirement Board sent Dr. Thakur a request for clarification providing him with further medical records and asking him to review Dr. Reback's additional letters of support. In September of 2006, Dr. Thakur reaffirmed his original opinion that Mr. Mello's death was not the natural and proximate result of the personal injury sustained or hazard undergone on account of which he retired in 1990.

The Petitioner argues that Dr. Thakur's opinion should not be credited as he erroneously stated in his letter of clarification that Dr. Reback, and not Dr. Yufit, treated Mr. Mello during his final hospitalization in July of 2005. Notwithstanding the Petitioner's argument, although Dr. Thakur did indeed reference Dr. Reback and not Dr. Yufit (Dr. Reback's colleague in the same medical practice), as Mr. Mello's treating physician during his last hospitalization, this mistake is de minimis and has no impact on the validity of Dr. Thakur's opinion. I found Dr. Thakur's opinion to be fully supported by the evidence, both medical and non-medical, provided in this case and credited his conclusion that Mr. Mello's death was not causally connected to his cardiac condition from which he was retired approximately fifteen years before his death. Where there are conflicting medical opinions, the fact finder determines what probative value to give to the medical opinions, including the ability to rely exclusively on one opinion while completely discounting another opinion. Robinson v. CRAB, 482 N.E. 2d 514 (1985).

Since the Petitioner failed to meet her burden to demonstrate that her husband's death was the "natural and proximate result of the injury or hazard on account of which he was retired," she is not entitled to accidental death benefits pursuant to the provisions of G.L. c.32 §9.

Accordingly, the decision of the Fall River Retirement Board denying the Petitioner's application for accidental death benefits is affirmed.

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